Australian Rail, Tram and Bus Industry Union, New South Wales v State Transit Authority

Industrial Relations Act 1996 Passenger Transport (Bus Services) Regulations 2000 LEGISLATION CITED: Public Sector Employment and Management Act 2002 Public Sector Management Amendment Act 1995 Transport Administration (Staff) Regulation 2005 Transport Administration Act 1988

Australian Rail, Tram and Bus Industry Union, New South Wales Branch v State Transit Authority [2007] NSWIRComm 162 CASES CITED: Cram, Re; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117 John Lysaght (Household) Limited - Port Kembla-Slit Recoil Line Award (unreported, Hungerford J, IRC94/2374, 21 March 1995); Reckitt Benkiser (Household) Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and others [2006] NSWIRComm 41

APPLICANT Mr G Panigiris Australian Rail, Tram and Bus Industry Union, New South Wales Branch LEGAL REPRESENTATIVES: RESPONDENT Ms E Allen State Transit Authority

• 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by the Australian Rail, Tram and Bus Industry Union, New South Wales of a dispute with State Transit Authority re filling of newly created temporary positions DECISION [2007] NSWIRComm 221 1 This decision arises from a notification of an industrial dispute, pursuant to s 130 of the Industrial Relations Act 1996 ('the Act') filed by the Australian Rail, Tram and Bus Industry Union, New South Wales Branch ('the Union') on 2 July 2007. The dispute is with the State Transit Authority ('State Transit') and concerns the method of filling four newly created temporary positions of Revenue Protection Officers. 2 Attempts at conciliating the dispute proved unsuccessful and accordingly, the Commission issued a certificate of attempted conciliation (s 135 of the Act) and set the matter for hearing. At the hearing of the dispute the Union sought the following orders be made by the Commission: That State Transit be directed to advertise the four temporary Revenue Protection Officer positions as expressions of interest for twelve months duration in accordance with their acting in higher grade policy. 3 Relevant legislative provisions, certain clauses of the applicable industrial instrument and a number of State Transit's policies were cited by the parties in aid of their respective positions. It will be helpful, in understanding the context of the evidence and submissions made, if I identify these references at the outset. Legislation 4 The State Transit Authority is required to achieve the objects of the Transport Administration Act 1988 which include in s 20A: (a) to operate efficient, safe and reliable bus services and Newcastle ferry services, and (b) to be a successful business and, to this end: (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Authority, 5 Section 20 of the Public Sector Employment and Management Act 2002 provides as follows: (1) When a vacant position is advertised in accordance with this Part, the appropriate Department Head may, in connection with a determination of the merit of the persons eligible for appointment to the position, create an eligibility list for the position.

(2) An eligibility list for a position is a list of eligible applicants (namely the persons who duly applied for appointment to the position and who are eligible for appointment but not selected for appointment) arranged in order of merit (with merit determined by the appropriate Department Head in accordance with section 19 (1)). ...

(5) An eligibility list is applicable not only to the position in relation to which it was created but also to any other position that the appropriate Department Head determines it should be applicable to on the basis that the position is substantially the same as the position in relation to which the list was created. 6 The Transport Administration (Staff) Regulation 2005 provides for the appointment of an officer without the requirement to advertise the position. Cl 20(1) of Div 1 of Pt 3 provides that: Unless the STA otherwise determines, vacancies in STA officers' positions must be advertised before they are filled.

Clause 22(4) provides that: If a vacant STA officer's position has not been advertised, the STA: (a) may appoint any person who is not an STA officer; or (b) may appoint an STA officer by way of promotion, if the STA officer has, in the opinion of the STA, the greater merit of the STA officers eligible for promotion, or (c) may appoint an STA officer by way of transfer or regression.

State Transit Authority Division of the New South Wales Government Services Senior and Salaried Officers Enterprise Agreement ('the Agreement')

7 Clause 21.1 of the Agreement defines temporary employment as follows: 21.1 Temporary Employment (a) A temporary Employee is an Employee recruited for special projects or a shortage of staff where the period involved is in excess of four (4) weeks and subject to a maximum of twelve (12) months. (b) A temporary Employee shall be entitled to the same salary and conditions as permanent Employees in the same classification, unless otherwise prescribed by the Agreement. 8 Clause 58 describes the procedure for filling authorised positions:

58.1 When a position becomes vacant the Employer shall, within four (4) weeks, determine if the position is to continue as an Authorised Position. 58.2 Where the position is to continue, a review will be undertaken within two (2) weeks, to determine whether there are any Employees on the displaced Officers list who may be suitable for redeployment into the vacant position either temporarily or permanently. 58.3 Where the position cannot be filled through redeployment, the Employer will commence to fill the position by merit selection within four (4) weeks of the redeployment review process. 58.4 The Employer will fill vacant positions, which it intends to maintain on its establishment, within six (6) months of the day on which the position became vacant in accordance with merit selection principles. State Transit Policies 9 The acting up in higher duties policy provides for the filling of a vacancy in excess of six months: Where a vacancy is likely to exist in excess of 6 months, managers must contact Recruitment & Employee Services to check if there are any suitable displaced officers available. Where there are no suitable displaced officers available, expressions of interest should be called from all employees of State Transit. Depending on the duration of the vacancy, the manager could also elect to advertise the position externally. Where a position has been advertised, the manager should select an employee to act up using the Merit Selection Procedures (PROC 55.03). However, before offering the position the manager with the vacany must consult with the successful applicant's line manager to determine whether their release will or will not adversely impact on the business. It may be necessary to offer the position to the next preferred applicant if the first preferred applicant can not be released. Line managers in declining to release an employee must consider how in the future, arrangements can be made to release the employee without there being adverse affects on the business e.g. ensuring other staff are trained to cover the essential position. Depending on the duration of the vacancy, how readily the opportunity can be shared amongst those employees considered suitable and the extent to which the employees will need training in the position, the manager can consider rotating the vacancy amongst more than one employee. 10 State Transit's Merit Selection Policy identifies the key principles of merit selection as: · the merit of the individual determines who is appointed · a consistent process is adopted for all recruitment and selection activities · effective quality control measures are an inherent part of the process · an open and accountable system for recruitment and selection of employees. Clause 4.1 of the Policy states: 4.1 DECISION TO RECRUIT In most cases when there is a newly created position or a vacant position, the position must be advertised and applicants sought to fill the position. In accordance with the principles of cultural diversity and merit selection, positions should generally be advertised externally and (sic) well as internally. Where there are employee's (sic) considered suitable for the position and the job requirements are industry specific, the position can be internally advertised only. Refer to Recruitment Co-ordinator's manual for advertising instructions. Exceptions Advertising is not required when redeploying an employee. Refer to the Displaced Employee Procedures (PROC 55.07) and Medical Retirement (WI 56.01.04) or in certain cases when an expression of interest to transfer has been received for the vacant position. Refer to the Transfer and Voluntary Regression procedures (PROC 55.04). The Transport Administration (Staff) Regulation, 2000 allows for non-advertising of vacant positions and direct appointment of external or internal people to these positions. Although it is not general practice, General Managers can approve direct appointments if the situation warrants it. In these cases General Managers should demonstrate that the direct appointee has merit for the position and that no other employees would be qualified to apply for the position if it were to be advertised. All direct appointments to permanent positions must also be approved by the General Manager, Human Resources. 11 The creation of eligibility lists during a selection process is governed by the Public Sector Management Amendment Act 1995. In a circular from the Premier's Department to all departments (98-107), the policy in respect to use of eligibility lists was described as follows: Section 26A of the Public Sector Management Act 1988 provides that when a vacant position in the public service is advertised, the appropriate Department may create an eligibility list for the position, listing the applicants in order of Merit. Until now, the eligibility list remained current for six months after the position was advertised. The amendment provides for an eligibility list to remain current 12 months after it was created (in the case of the base grade or entry level position) or 6 months after the list was created (in the case of other positions). Base grade or entry level positions are defined in the amendments as a position to which no officer in the Department, employed in the same classification of work as that to which the position relates, could be promoted. It should be noted that an eligibility list is applicable not only to the position in relation to which it was created but also to any other position which the appropriate Department Head determines it should be applicable to on the basis that the position is substantially the same as the position in relation to which the list was created.

BACKGROUND TO THE DISPUTE 12 In late 2006 two permanent Revenue Protection Officer positions became vacant and in November 2006 the positions were advertised internally in the usual way. A selection panel was appointed, the culling of unsuitable applicants was undertaken and, after interviews, the two positions were filled. The panel decided to establish an eligibility list as there was a possibility of retirements in the Unit later in the year. The scores of the top six applicants were very close and the remaining four candidates were considered suitable for future vacancies and placed on the list. The other applicants were determined as unsuitable. 13 Shortly thereafter, a submission to the Minister for Transport to increase permanent staff in the Revenue Protection Unit was rejected. However, Mr Paul Welzel, the Manager of the Unit, proposed that four temporary positions for 12 months be created in order to establish whether a case for more permanent positions could be justified and, presumably resubmitted to the Minister. This proposal was approved and Mr Welzel discussed the Unit's staffing levels with the local Union representative and other officers in the Unit. In order to avoid a lengthy process of re-recruitment, and as four of the recent applicants were considered suitable for the positions, Mr Welzel decided that the eligibility list be utilised to fill the temporary positions. He said that at this stage, there was no objection to the use of the list. The four applicants on the list were approached and three of them advised of their interest in accepting the temporary positions, while the fourth was awaiting a decision from a current appeal.

14 On 28 May 2007, the local Union delegate advised of a dispute as to the filling of the positions. The disputes procedure under the Agreement was invoked and the dispute was ultimately referred to the Commission for determination. THE EVIDENCE 15 Both Mr Welzel and State Transit's Acting Manager, Recruitment and Employee Services provided written statements and oral evidence. Their evidence was largely uncontested. It provided the necessary background to understanding the issues in dispute and Management's reasons for adopting the eligibility list for the filling of the temporary positions in preference to the Union's proposal to re-advertise the positions and undergo a merit selection procedure. 16 Mr Paul Welzel is a former Detective Senior Constable in the NSW Police Force. He has been Manager of the Revenue Protection Unit since 1991. The Unit has 26 Revenue Protection Officers. These officers are responsible for checking Sydney Buses and the Liverpool / Parramatta T-Way (and Sydney Ferries) for passenger fare compliance and to ensure bus operators are complying with State Transit rules, including the correct issue of tickets. They are authorised to issue either, a penalty notice, or caution notice under a discretionary policy in accordance with the Passenger Transport (Bus Services) Regulations 2000. The Officers work in pairs as part of a team of four in allocated regions. Each officer works a 19 day month. 17 Mr Welzel said that the use of the eligibility list in the present situation has the advantage of filling the positions quickly and saving costs associated with re-advertising and recruiting. The usual process can take six months. Employees benefit by only filling in one application and attending one interview. He was not aware of any employee who had been disadvantaged by the use of the eligibility list in the present circumstances. 18 Mr Welzel did not believe that the acting up in higher duties policy was appropriate to these circumstances. It has not been the practice to have bus operators acting up as Revenue Protection Officers because training was required. New Officers receive "on the job" training and later "shadow" other members of the team. Training might take around six weeks. Using the acting up policy would not have the benefits of utilising employees already deemed suitable to fill the positions. Mr Welzel accepted that if the positions became permanent, the occupants of the temporary positions would have a good chance of being made permanent. 19 In cross-examination, Mr Welzel acknowledged the differences between permanent and temporary positions. He agreed that the positions advertised last year were on the basis of merit and were to be seen as a transfer. Originally, the advertising was for persons with revenue protection experience, but after objections from the Union the positions were advertised across State Transit for persons qualified or prepared to undergo training. 20 Mr Welzel accepted that the disputed positions were advertised as newly created positions and that in similar cases the standard process of advertising and merit selection is applied. Mr Welzel said that the employees on the eligibility list would need to undergo training and may be found to be unsuitable. Generally, they would be reviewed after six months. He agreed that the cost of training would be significant. 21 Mr Welzel agreed that if State Transit re-advertised the positions it would open up opportunities for bus operators to apply. Moreover, he acknowledged that if those on the eligibility list were employed on a temporary basis, they would have a stronger opportunity to gain a full time position. However, he did not regard it as an unfair advantage. 22 Mr Welzel said it was possible that if the recruitment process was re-opened, the four on the eligibility list might be the only ones who apply or might be the only ones found to be suitable for the positions. 23 In re-examination, Mr Welzel said he did not know if any unsuccessful candidates had appealed against the eligibility list. 24 Mr Welzel detailed the process employees on the eligibility list had already undergone. The positions were advertised. About 20 employees had applied. Applicants submitted a written application. There was an initial cull, then an interview and an assessment of the results. 25 Ms Rosanna Lisi is currently State Transit's Acting Manager of Recruitment and Employee Services. Her substantive role is Senior Recruitment and Employee Services Co-ordinator. Ms Lisi's Unit manages the recruitment of all job applications within State Transit. 26 Ms Lisi described State Transit's merit selection procedure, which required the advertising of the position, the appointment of a selection panel, the interview process and selection procedure. In the event an eligibility list is used there is no requirement to re-advertise, establish a selection panel or undertake the merit selection procedure. She said this is a more efficient, quicker and cost effective method of filling positions. 27 Ms Lisi said that the use of eligibility lists are used in public sector agencies in accordance with the Premier's Department Guidelines (see earlier para 11). The lists are not used solely for the exact position that they are created, but may be used for positions that are "substantially" the same in classification, grade and responsibility. 28 It was Ms Lisi's understanding that there was no necessity for State Transit to re-advertise a position rather than utilise an eligibility list simply because the available position is temporary. She added that the acting up in higher duties policy was not appropriate for this situation. 29 In oral evidence, Ms Lisi described the purpose for which eligibility lists are created. She said the list is valid for six months and is utilised when a recommended officer declines the position or after a month or two decides it wasn't what the officer expected and resigns. The list then serves as a cost effective and efficient means of filling the position. The cost savings are with advertising, the time taken by selection panels in culling, interviews and assessment. It can take quite a few weeks worth of work. The advantage for applicants is the time not required to fill out an application form and the stress of interviews. 30 Ms Lisi detailed the process of filling positions. This included the following steps:

· Official clearances · Matching displaced officers · Checking transfer lists · Preparing advertisements and cross checking · Publishing advertisements · Two weeks to apply · Panel undertakes a cull · Analysing other assessment tools · Interviews · Selection report prepared and signed off by panel and general manager · Applicants notified of outcomes 31 Ms Lisi agreed that the disputed positions were newly created temporary positions for which no permanent incumbent had left. While temporary positions are usually advertised, she believed that the positions were exactly the same as the permanent positions and could be filled by the eligibility list in terms of the Premier's Circular on their use. In this case, four of the unsuccessful applicants were told they were on the eligibility list and all unsuccessful applicants had a right to request a review or appeal the decision. 32 Ms Lisi described the difference between appointment on a temporary basis and the use of acting up in higher duties policy. Higher duties was not appropriate in this situation because it is primarily for people within a particular unit. She stated that because the eligibility list was of recent origin, no employee would be disadvantaged by its use. However, she agreed that an incumbent would have an advantage for recruitment to any future permanent position.

33 Ms Lisi said she could not think of another example of the use of the eligibility list in circumstances similar to those in this dispute. 34 In cross-examination, Ms Lisi said that the objectives of equal employment opportunity (EEO) are to ensure the principles of merit are applied in recruitment and the process is carried out ethically and with integrity so that people have a fair and open opportunity to put their "hand up" for positions. 35 Ms Lisi described the difference between a new position and an existing vacant position. Temporary positions are used to help a unit over a particularly busy time or to support operations. These positions are filled by merit selection. However, there is no appeal over a temporary appointment. Ms Lisi agreed that unsuccessful applicants are not told if they are on the eligibility list. 36 Ms Lisi said that eligibility lists can be used to fill similar vacancies. However, the position must be similar in role, responsibility and classification. The four current eligibility list candidates have been given a verbal offer for appointment to the temporary positions and three have accepted. State Transit policy also provides for direct appointment in circumstances where the person meets the criteria and no other person would be disadvantaged. These are usually very specialised roles and are quite rare. Ms Lisi was referred to the acting up in higher duties policy which requires that, for vacancies in excess of six months, there must be a checking for any displaced officer and, if none is found, expressions of interest are sought. 37 Ms Lisi gave a hypothetical example of the unsuitability of the eligibility list being used for a customer service co-ordinator at Brookvale where a vacancy arises at Port Botany. The policy was not mandatory and equity issues, such as travel distances would also be considered.

SUBMISSIONS For the Union 38 Mr G Panigiris submitted that the issue before the Commission was whether the temporary Revenue Protection Officer positions were similar to the permanent positions which were advertised in December 2006. He contended that they were not. Permanent positions are offered on the basis of promotion; they have certain attractions and an appeal right is available to unsuccessful applicants. Temporary positions are no more than an acting up in higher duties arrangement where the incumbent must return to their former substantive position. He noted that Ms Lisi and Mr Welzel acknowledged the differences between permanent and temporary employment. In this case, a select group of employees would be offered new temporary positions, thereby disadvantaging all other employees who may have sought temporary employment. 39 Mr Panigiris noted that Ms Lisi could not recall the eligibility list being used in this way before. He said that by doing so, State Transit would be circumventing their own recruitment policy for filling newly created positions. It would bypass equal employment opportunity obligations and merit selection criterion. It was inappropriate to do so, just to save a few dollars. Mr Panigiris added that even the acting up in higher duties policy requires expressions of interest for positions in excess of six months. 40 Mr Panigiris said that even if the employer could directly appoint persons according to management prerogative, it was still required to demonstrate that no other employee was qualified if the position was advertised. State Transit had not met this test in this case. 41 Mr Panigiris clarified the Union's position by putting that either the policy on acting up in higher duties or the policy for filling of temporary positions could be utilised in this matter, as both policies require merit selection. For the respondent 42 Ms E Allen helpfully provided the Commission with two background documents. The first identified the industrial coverage of the employees subject to the dispute, and the second provided details of State Transit's operations and underpinning legislation. 43 Ms Allen's primary submission was that the positions for which the eligibility list had been created were the same positions - only their status was different. And even if they were not exactly the same positions, the eligibility list can also be used for any other appropriate position. 44 Ms Allen said that the use of eligibility lists is a common mechanism used in the Public Service, (see earlier para 11). However, Ms Allen acknowledged that State Transit was not in the Public Service for present purposes, and not covered by the Public Sector Employment and Management Act. 45 Ms Allen submitted that the use of eligibility lists provide an efficient and cost effective means of filling positions, rather than undertaking the extra advertising and selection process again. Even so, this method was available to State Transit under management prerogative: See John Lysaght (Household) Limited - Port Kembla-Slit Recoil Line Award (unreported, Hungerford J, IRC94/2374, 21 March 1995); The Australian Rail, Tram and Bus Industry Union, New South Wales Branch v State Transit Authority [2007] NSWIRComm 162. Ms Allen added, that the use of eligibility lists would also advantage employees in not having to undergo the selection process and interview for a second time. 46 In any event, Ms Allen relied on the provisions of the Transport Administration (Staff) Regulation 2005 which emphasises management's prerogative to appoint persons without the requirement to advertise where no other person of greater merit is available (see earlier para 6). Ms Allen reiterated that the Commission would not intervene in management's prerogative, unless it could be evidenced that the employer's actions imposed unfair or unreasonable demands on employees: See Cram, Re; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117 and Reckitt Benkiser (Household) Pty Ltd v Automotive Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and others [2006] NSWIRComm 41. No such evidence was provided in this case, nor was there any evidence of any potential detriment to any employee. 47 Ms Allen submitted that it was not open for the Union to rely on the terms of the enterprise agreement. Further, the acting up in higher duties policy is used as relief within a unit, not for the filling of a vacant temporary position. It is particularly unsuitable for positions which require training, such as for Revenue Protection Officers. The proposed order of the Union would fetter the power of State Transit to appoint persons without advertising. 48 Ms Allen sought the following orders from the Commission: 1) The State Transit Authority is not restrained from offering temporary Revenue Protection Officer positions to employees contained on a current eligibility list. 2) There is no requirement that State Transit re-advertise the positions subject to this dispute. 3) Subject to a determination by the New South Wales Industrial Commission, Management has the prerogative to determine whether a position is to be filled, on what basis it is to be filled and how it is to be filled. 4) These orders settle the industrial dispute relating to the appointment of the temporary positions, and on what basis. Therefore the parties to the dispute must refrain from any industrial action in relation to such industrial dispute. 5) The Rail, Tram and Bus Union, its officials, employees and delegates must take all reasonable steps to ensure these orders are complied with including but not limited to advising members to whom the dispute relates. 6) These orders take effect from and shall remain in force until the expiration of the State Transit Authority of the New South Wales Government Service Senior and Salaried Officers' Enterprise Agreement 2006. 49 In reply, Mr Panigiris emphasised the importance of maintaining the merit selection process for vacant positions or acting up in higher duties positions in excess of six months. What State Transit was seeking here is completely new and cannot be supported by management prerogative.

CONSIDERATION 50 There can be no doubt that the use of the eligibility list to fill these four temporary Revenue Protection Officer positions is a more convenient, quicker, less costly and, therefore, a more efficient means of selection than undertaking a new merit selection process. If these were the only factors relevant to this dispute, I would have little hesitation in endorsing the approach proposed by State Transit. However, in my view there is one significant consideration in this case which overrides the factors of convenience, efficiency and cost; that is, the importance of preserving the principle of merit selection in the filling of positions - be they permanent or temporary. 51 It is no exaggeration to observe that the principle of merit selection is probably the most fundamental and significantly positive step ever undertaken in the recruitment process in the New South Wales Public Sector. Hitherto, the means of promotion within the Public Sector was largely based on seniority with little, or no regard had to the merits of the candidate for the position. As a consequence it is little wonder that the Public Sector struggled to compete with equivalent services offered in the private sector. I do not wish to be seen to be overdramatising this point or pontificating on the subject, but it does seem to me that the Commission would be most reluctant to tamper (even at the edges) with the principle of merit selection, notwithstanding the obvious efficiency benefits of adopting the eligibility list in these unique circumstances. After all, in the old days, promotion by seniority cost virtually nothing in direct terms, but was overwhelmingly costly in overall efficiency outcomes. It is self evident that the cost and time taken for merit selection processes are far outweighed by the overall benefits to the organisation. 52 In my opinion, giving primacy to merit selection is necessary where there might be some doubt as to the transparency, openness and consistency of application in the process. That is to say, that I am not absolutely convinced that there are not other State Transit employees who might wish to apply for a temporary position rather than a permanent position, as was previously advertised. It is not sufficient, as Ms Allen contended, that these doubts are satisfied because the Union had brought forward no one who claimed to be disadvantaged by the process. The mere fact that the differences in temporary versus permanent employment might raise different considerations for other interested employees, must be of concern. Moreover, in an organisation of some thousands of employees, and where the permanent positions were advertised eight months ago, how would one possibly know who might now be interested (and suitable), unless a direct and widespread advertising of the positions was adopted? 53 In one sense, if the speculative submission of Ms Allen is right, State Transit might end up with the same persons applying as are now on the eligibility list. Thus, there may be no need for a long and extended process. At this point, I would also observe, that I am unable to accept the submission that the employees in question will be benefited by the adoption of the eligibility list in that they will not have to re-apply and undergo a second interview. Those that have applied previously can simply use their last application and anyone who failed last time, or didn't apply at all, will get a "second chance". It is of no moment at all, that employees have to spend time filling out a second application. In addition, in my view, no one is disadvantaged by a second interview. While I readily accept that interviews can be stressful, it is nevertheless good experience and may, in fact, identify suitable persons who simply performed badly in the first interview. 54 Reliance on the willingness of the four eligibility listed employees to take up the temporary positions is really irrelevant to the question here to be determined. Why wouldn't they be willing to do so? I hardly think it would be otherwise. They would secure vital and crucial experience in the temporary roles which would virtually guarantee their selection for any future permanent position. In other words, as was conceded by Ms Lisi and Mr Welzel, they would have some advantage over other employees for future permanent positions. In my view, it would be more than an advantage; they would have a "walk up a start". 55 Notwithstanding these observations, I would add that the four eligibility listed employees would still require training and they may still be found unsuitable or unwilling to continue in the role, even if it was on a temporary basis. 56 While I have emphasised the primacy which I believe should be given to merit selection in this dispute, there are other factors which I have taken into account in accepting that the Union's case has been substantially made out. 57 Firstly, I do not accept that the positions previously advertised and the newly created temporary positions are the same, or even substantially the same; the latter being the test referred to in the Premier's Memorandum (see earlier para 11). Of course, the work performed, the conditions, rates and classifications are the same. But to suggest that they are the same positions is both illogical and contrary to the distinctions drawn between temporary and permanent employment in both the relevant legislation and applicable industrial instruments. There are obvious benefits afforded to permanency in the Public Sector. Another difference is that there are no appeal rights for unsuccessful candidates for temporary positions as there are for permanent appointments. 58 Moreover, it is not open for State Transit to rely on the Premier's Memorandum concerning the use of eligibility lists in filling positions which are substantially the same. As I said, true it is that the work is the same. But I stress that it is not the same, or even substantially the same position. There are vast differences between temporary and permanent employment. Employees might have quite different expectations and considerations when deciding to apply for a temporary position over a permanent one. Realistically, the two classes of employment are fundamentally and practically different and the philosophy and industrial logic underpinning each category of employment is quite distinct and incompatible. Another relevant distinction referred to in the context of this dispute, was the obvious unsuitability of the eligibility list for the same position where a vacancy might arise at one geographic location when the list had been drawn from persons applying for the same position at another far away geographic location. The distance between Brookvale and Port Botany was cited in the proceedings. 59 Secondly, the evidence ultimately disclosed that eligibility lists were not created for use in the present context and there was no other example of them being used in the specific way proposed by State Transit in this dispute. Ms Lisi described the primary purpose of the lists as when a recommended officer declines a position or resigns after a few months. The original eligibility list is utilised, subject to it not being more than six months since it was created. In light of the unique and first time use of the eligibility lists as proposed, I would be most reluctant to endorse its use, particularly where the principle of merit selection might be seen to be compromised. 60 Thirdly, I do not accept that the principle of management prerogative is applicable to these particular circumstances and, in any event, it is not what is sought to be invoked in the present case. Management prerogative and the cases cited by Ms Allen, deal with management's right to direct how work is to be performed, subject to no harshness or unfairness being imposed on employees. This is not analogous to the situation here. Because of the principle of merit selection in the public service, management's prerogative does not apply in respect to the usual appointment of staff. Indeed, on one view, management prerogative is the very antithesis to merit selection. The very fact that merit selection is the primary consideration in any appointment in the public sector, demonstrates that it is beyond the reach of management's prerogative. Were it otherwise, management could invoke its prerogative to appoint whomever it pleased. While I do not suggest that this is what is sought here, reliance by Ms Allen on management prerogative in the present dispute, is misplaced. Moreover, the reference to Cl 22(4) of the Transport Administration (Staff) Regulation still requires that an appointed person must be of greater merit than any other officer eligible for promotion. I do not understand there to have been an exercise undertaken in this regard. That being so, it cannot be relied upon. 61 For these reasons, I would conclude that merit selection should apply to the filling of the four proposed temporary Revenue Protection Officer positions. That said, there remains a debate about whether the appointments should be filled as higher duties appointments or according to the temporary appointment policy. 62 Strictly speaking, it seems to me that there is no express policy which directly deals with the present situation. Presumably, that is why the Union put the answer to the dispute in the alternative. However, for my part, I do not consider these temporary positions are really acting up in higher duty positions. I accept the evidence that the filling of temporary vacancies by the use of the acting up in higher duties policy is usually for a different purpose and within a particular unit. In my opinion, the more appropriate policy to be utilised here is that applying to the appointment of temporary positions, and I propose to so order. Both parties proposed alternative draft orders and to the extent it is necessary to do so, I would refuse State Transit's proposed orders and adopt, with modifications, the order proposed by the Union.

ORDERS 63 Pursuant to s 136 of the Industrial Relations Act 1996, the Commission orders that:

1. State Transit advertise the four proposed temporary Revenue Protection Officer positions, the subject of dispute proceedings IRC 1095 of 2007, and proceed to selection of suitable persons for the positions in accordance with State Transit's merit selection procedures.

2. Should State Transit consider there is a need to address the particular issue identified in this dispute by reference to amending existing policies, then this process should be undertaken in consultation with the Union/s. 3. These dispute proceedings are thereby concluded.

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